County of Ventura, California’s Permitting Scheme Stricken as Prior Restraint on Free Speech

The United States Court of Appeals for the Ninth Circuit has ruled that Ventura County, California’s conditional use permit (CUP) scheme for “temporary outdoor” events is an unconstitutional prior restraint on free speech. Temporary outdoor events are defined in the County’s zoning code to include “[o]utdoor recreational events such as harvest festivals, amusement ride, historic re-enactments, animal events, art shows, concerts, craft fairs, weddings, and religious revival meetings.” In this case, the plaintiff, Epona, LLC, owner of 40-acres in Ventura County, sought approval to host outdoor events, including weddings. The Ninth Circuit determined that the zoning code lacked definite and objective guiding standards with respect to temporary outdoor events and afforded the County’s Planning and Zoning Commission (Commission) with unbridled discretion in violation of the First Amendment.

Epona, LLC sought a CUP for up to 60 temporary outdoor events per year, applied for a CUP, and obtained positive recommendations from county agencies reviewing the proposed use. Zoning staff also recommended approval, but the Commission denied the application after neighbors complained, identifying the following reasons for denial:

(1) The venue is not compatible with the rural community …;

(2) The venue has the potential to impair the utility of neighboring property or uses and is inconsistent with the finding set forth in the [zoning code]; and

(3) The venue has the potential to be detrimental to the public interest, health, safety, and convenience, or welfare and is inconsistent with the finding set forth in the [zoning code]

Epona, LLC appealed the Commission’s denial to the Board of Supervisors. This time, zoning staff recommended denial of the CUP application. The Board’s vote was split evenly, having the effect of affirming the Commission’s denial. Epona, LLC sued the County of Ventura, asserting that the zoning code violated the First Amendment on its face, as well as RLUIPA’s equal terms provision.

The Ninth Circuit found the CUP standards for temporary outdoor events to be without clear and definite standards, constituting a prior restraint on free speech. The CUP standards are as follows:

(a) consistent with the intent and provisions of the County’s General Plan and of Division 8, Chapters 1 and 2 of the Ventura County Ordinance;

(b) compatible with the character of surrounding, legally established development;

(c) not [] obnoxious or harmful, [and must not] impair the utility of neighboring property or uses;

(d) not [] detrimental to the public interest, health, safety, convenience, or welfare;

(e) compatible with the existing and potential land uses in the general area where the development is to be located;

(f) on a legal lot; and

(g) approved in accordance with the California Environmental Quality Act and all other applicable laws.

The Ninth Circuit determined that while criteria (f) and (g) are objective, (a) through (e) are subjective and do not provide sufficient guidance to permitting officials. The Court specifically took issue with criteria (c) and (d) (“have a harmful effect upon the health or welfare of the general public” or be “detrimental to the welfare of the general public … [or] to the aesthetic quality of the community or the surrounding land uses.”). Even though the CUP scheme required specific factual findings, the Court stated that this was not “necessarily determinative of whether a statute confers excess discretion.” The Court was also troubled that there was no time limit for the Commission to act on a CUP application. The lack of a time limit, along with the lack of definite and clear standards, caused the Court to conclude that the CUP permitting scheme was not “content neutral” and was a prior restraint on free speech.

This decision is an important one for municipalities, as the conditional use permit criteria identified by the Ninth Circuit as granting unbridled discretion in county officials may be similar to criteria found in other zoning codes. After all, an overarching purpose of zoning is to protect public health, safety, and general welfare. It is not clear how this decision would have come out if there were, in fact, a time limit for the Commission to act on a CUP application. Regardless, municipalities may wish to review their codes to ensure that permitting requirements provide property owners and land users with precise standards to be applied uniformly.

Epona, LLC also alleged that the zoning code violated RLUIPA’s equal terms provision, despite the fact that Epona conceded that it was not a religious assembly or institution. The Court, however, rejected this claim, finding the equal terms provision inapplicable to a secular assembly or institutional use.

The decision in Epona v. County of Ventura (9th Cir. 2017) is available here.

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